Citation Nr: 0409296
Decision Date: 04/09/04 Archive Date: 04/16/04
DOCKET NO. 03-01 341 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependents' educational assistance under
Title 38, United States Code, Chapter 35.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Kristi Barlow, Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to February
1946, and again from April 1951 to November 1952. He died in
November 1999, and the appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, which denied the benefits sought on
appeal.
FINDINGS OF FACT
1. The veteran died in November 1999 of failed
cardiopulmonary resuscitation due to coronary artery disease.
His service-connected seizure disorder was a significant
condition materially contributing to his death.
2. The veteran was service-connected for a chronic brain
syndrome, with manifestations including seizures, at the time
of his death. This disability had been rated as 50 percent
disabling since May 1961.
3. Basic eligibility requirements for dependents'
educational assistance under 38 U.S.C. Chapter 35 have been
met.
CONCLUSIONS OF LAW
1. Service-connected disability materially contributed to
the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.312 (2003).
2. The required conditions for eligibility for dependent's
educational assistance under Chapter 35, Title 38, United
States Code have been met. 38 C.F.R. § 3.807 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principle or
a contributory cause of death. See 38 C.F.R. § 3.312(a). A
contributory cause of death is inherently one not related to
the principal cause. In determining whether a service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that
it casually shared in producing death, but rather it must be
shown that there was a causal connection. See 38 C.F.R.
§ 3.312(c)(1).
The evidence of record shows that the veteran had been
service-connected for a neurologic disorder since 1953. The
disability was recharacterized as post-traumatic epilepsy in
1959, and ultimately characterized as a chronic brain
syndrome, with manifestations including seizures, in 1961.
This disability was deemed to be 50 percent disabling in May
1961, and that rating remained in place at the time of the
veteran's death.
Medical records show that the veteran had a lengthy history
of prescription drug use in order to control his service-
connected seizure disorder. He also had a history of
coronary artery disease beginning in 1976. Treatment records
include a July 1999 electroencephalogram (EEG) report that
noted no epileptiform or focal abnormalities during the
recording. The recording was interpreted as abnormal due to
mild-to-moderate generalized slowing consistent with diffuse
cerebral dysfunction. The record also shows that the
veteran's Dilantin was being gradually decreased from 300 mg.
per day beginning August 6, 1999.
The appellant testified before an RO hearing officer that on
November 2, 1999, she had breakfast with the veteran and he
seemed fine. She stated that the veteran then went to his
bedroom without difficulty. When the appellant entered the
bedroom shortly thereafter, she found the veteran holding
onto the bedpost and leaning. She asked him if he was all
right, and he said that he was, but those were his last
words. He fell to the floor and was never resuscitated. The
emergency room notes show that the veteran was pronounced
dead. The death certificate shows that the immediate cause
of death was failed cardiopulmonary resuscitation due to
coronary artery disease. The amended death certificate added
seizures under other significant contributing factors. An
autopsy was not performed.
The veteran's private cardiologist of over twenty years
reviewed the claims folder, including all treatment records,
and provided a statement in January 2000. He noted that the
veteran's recent sudden death and failed cardiopulmonary
resuscitation were attributed to his known devastating
cardiac disease; he was thought to have sustained a
ventricular tachy-arrythmia because of his underlying cardiac
disease. The cardiologist indicated that there might be
another explanation for the veteran's death, and "propose[d]
another hypothesis": that the veteran experienced a
spontaneous seizure (his first in thirty years), became
hypoxic secondary to seizure activity, and then developed
hypotension and/or ventricular tachycardia because of
underlying cardiac disease. He added that, "If this
scenario is true, then the death was service related"
because the seizure activity was service-connected.
The appellant's representative has submitted a February 2004
memorandum from a medical consultant who has medical doctor
and master of public health degrees. The consultant reviewed
the veteran's claims folder, including the above-referenced
medical opinion. She concluded that the veteran had an un-
witnessed event from which he never recovered. She noted
that it was certainly medically plausible that the underlying
cause of the veteran's death could be cardiovascular in
origin, given his underlying chronic cardiovascular disease.
She also stated that it was medically plausible that the
withdrawal of his seizure medication could have resulted in
seizure activity leading to hypoxia, which would result in
further cardiopulmonary compromise in the setting of
cardiovascular disease. She noted that there is always an
increased recurrence-risk of seizures after the withdrawal of
anti-seizure medication. She concluding by suggesting that
[S]ince the veteran's death was not a
witnessed event and he had been
undergoing withdrawal of his seizure
medication at the time of his death, it
is as likely as not that the veteran's
service connected condition contributed
to his demise.
It is important to note at this juncture that it is the
defined and consistently applied policy of VA to administer
the law under a broad interpretation, consistent, however,
with the facts shown in every case. When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt is
meant one which exists because of an approximate balance of
positive and negative evidence which does not satisfactorily
prove or disprove the claim. It is a substantial doubt and
one within the range of probability as distinguished from
pure speculation or remote possibility. See 38 C.F.R.
§ 3.102.
In this case, the veteran's death was initially attributed to
his known cardiovascular disease. It has been suggested,
however, that the veteran's death might have been
precipitated by a chain of events beginning with a seizure
that resulted from the gradual decrease of his seizure
medication in the months before his death. It is notable
that the appellant did not describe any seizure activity in
her testimony or statements concerning what she experienced
in her last words with her husband, nor did the emergency
room notes contain any reference to seizure activity.
Nonetheless, the medical consultant of the appellant's
representative states that "it is as likely as not" that
the veteran's service-connected condition contributed to his
death. This phrase is an approximate balance of positive and
negative evidence which does not satisfactorily prove or
disprove the claim. Consequently, it raises a reasonable
doubt, which must be resolved in favor of the claimant. When
this reasonable doubt is resolved in favor of the appellant,
entitlement to service connection for the cause of the
veteran's death is granted.
II. Dependents' Educational Assistance
For the purposes of dependent's educational assistance under
38 U.S.C.A. Chapter 35, a child or surviving spouse of the
veteran will have basic eligibility for benefits where the
veteran was discharged under other then dishonorable
conditions, and had a permanent and total service-connected
disability in existence at the date of the veteran's death;
or where the veteran died as a result of the service-
connected disability. See 38 C.F.R. § 3.807(a).
In this case, the veteran served honorably during two
separate periods of war. He did not have a permanent and
total service-connected disability at the time of his death.
As decided above, however, the cause of the veteran's death
is service-connected. Consequently, the Board finds that the
appellant has met the basic conditions of eligibility for
dependent's educational assistance under Chapter 35, Title
38, United States Code.
III. VCAA
The Board notes that it has given consideration to the
provisions of the Veterans Claims Assistance Act of 2000 (the
VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified
as amended at 38 U.S.C.A. § 5100 to 5107 (West 2002)). The
VCAA includes an enhanced duty on the part of VA to notify a
claimant of the information and evidence necessary to
substantiate a claim for VA benefits. It also redefines the
obligations of VA with respect to its duty to assist a
claimant in the development of a claim. Regulations
implementing the VCAA have been enacted. See 66 Fed. Reg.
45,620 (August 29, 2001) (codified as amended at 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326(a)). Also see Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
The Board has carefully considered the provisions of the
VCAA, the implementing regulations, and recent decisions of
the United States Court of Appeals for the Federal Circuit
(Federal Circuit) and the United States Court of Appeals for
Veterans Claims (Court). Following a complete review of the
record, the Board finds that the development of the claims on
appeal may not have proceeded completely in accordance with
the provisions of the law and regulations, in that the
appellant was provided notice under the VCAA in April 2003,
after the April 2001 decision that is the subject of this
appeal, and the appellant's representative submitted the
February 2004 medical opinion without waiver of review of
said evidence by the agency of original jurisdiction. The
evidence of record, however, allows for a complete grant of
benefits sought and the appellant will not be prejudiced by
the Board's issuance of a decision at this time
notwithstanding the procedural defects. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).
ORDER
Service connection for the cause of the veteran's death is
granted subject to the laws and regulations governing the
award of monetary benefits.
Eligibility for dependent's educational assistance under
Chapter 35, Title 38, United States Code is established.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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